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Dwyer Instruments, Inc. v. Wal-Mart.Com USA, LLC

United States District Court, N.D. Indiana, South Bend Division

December 6, 2017

DWYER INSTRUMENTS, INC., Plaintiff,
v.
WAL-MART.COM USA, LLC, et al., Defendants.

          OPINION AND ORDER

          Michael G. Gotsch, Sr. United States Magistrate Judge

         On November 6, 2017, Defendants, Tasharina Corp. (“Tasharina”) and Wal-Mart.com USA, LLC (“Wal-Mart.com) (collectively “Defendants”), filed their Motion to Transfer Venue to the Northern District of California Pursuant to 28 U.S.C. § 1404. On November 20, 2017, Plaintiff filed a brief in opposition to Defendants' requested transfer. Defendants' motion became ripe on November 28, 2017, without any reply being filed. Under N.D. Ind. L.R. 7-1(d)(2)(B), the Court allowed Defendants seven days after Plaintiff's response brief was served to file any reply brief. Without leave of court, Defendants nevertheless filed an untimely reply brief on December 1, 2017. While typically the Court does not consider untimely filings, the Court actually considered Defendants' untimely reply brief in this case. As the analysis below shows, however, Defendants' reply brief did not add sufficient factual and legal information to affect the Court's decision to deny the instant motion to transfer.

         I. Relevant Background

         Plaintiff is an Indiana corporation with its principal place of business in Michigan City, Indiana, which is located in the Northern District of Indiana. Plaintiff manufactures industrial gauges and controls, including pressure gauges and indicating transmitters using the trademark MAGNEHELIC, which was registered to Plaintiff in 1992. In 2008, Plaintiff also received trademark registration for a gage lens design mark used with its pressure gauges.

         Tasharina is a California corporation with its principal place of business in Mountain View, California, located in the Northern District of California. Tasharina sells assorted commercial goods online through various retailers, including the Walmart Marketplace on Wal-Mart.com. Since 2016, Tasharina has imported and sold pressure gauges that it ordered from a Chinese supplier called Yueqing ZhuoPin Meter Co., Ltd. and conducting business at www.magrfhelic.com. In 2016, Tasharina sold 11 units of the MAGRFHELIC product in 4 separate sales totaling $636.50. None of the 2016 sales were made to Indiana. As a third-party seller on Wal-Mart.com, Tasharina sold 3 units of the MAGRFHELIC product in 2 separate sales -both to Plaintiff in Indiana-totaling $185.08 in 2017. Tasharina still has 22 remaining units of the MAGRFHELIC product in its inventory.

         Wal-Mart.com is a California corporation with its principal place of business in San Bruno, California. Wal-Mart.com is a subsidiary of Wal-Mart Stores, Inc., a Delaware corporation with its principal place of business in Bentonville, Arkansas. Even though Wal-Mart Stores, Inc. maintains multiple brick-and-mortar stores throughout the Northern District of Indiana, Wal-Mart.com maintains no facilities in this District. As relevant here, Wal-Mart.com policy allows customers to return products at Wal-Mart stores only if they were sold and shipped by Wal-Mart.com. Items sold and shipped by third-party sellers on the Wal-Mart Marketplace cannot be returned to Wal-Mart stores.

         Based upon its registered marks, Plaintiff filed a complaint against Defendants in this Court on August 15, 2017, alleging federal claims of counterfeiting and infringement of registered trademarks; trade dress infringement; use of false designations or origin; and use of false and misleading descriptions and representations; as well as a state common law claim of unfair competition. Defendants answered on September 22, 2017. This case is currently set for a Rule 16 Preliminary Pretrial Conference on December 7, 2017. The parties' joint proposed discovery plan, as required under Fed. R. Civ. P. 26(f) was due on November 30, 2017. Before that deadline passed, Defendants filed the instant motion to transfer arguing that the convenience of the parties and the interest of justice favors resolution of these claims in the Northern District of California. As of this date, no proposed discovery plan has been filed.

         II. Analysis

         Pursuant to 28 U.S.C. § 1404(a), a federal district court may transfer any civil action to any other district for the convenience of the parties and witnesses and in the name of justice if venue is proper in both courts. Therefore, transfer analysis involves separate inquiries into (1) proper venue in both the transferor and transferee courts; (2) the convenience of parties and witnesses; and (3) the interest of justice. Research Automation Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d 973, 978 (7th Cir. 2010). The burden is on the movant to show that transfer is warranted. Coffee v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir. 1986). However, the statute allows for a “flexible and individualized” analysis of the unique issues raised in a particular civil action, which therefore places considerable discretion in the transferor court when deciding whether transfer is appropriate. Research Automation, 626 F.3d at 977-78 (citing Stewart Org., Inc. v. Ricoh Corp.,, 487 U.S. 22, 29 (1988)).

         Here, no party disputes that venue is proper in both the Northern District of Indiana and the Northern District of California. Therefore, the Court need only consider the convenience of the parties and witnesses and the interest of justice in reaching its decision on Defendants' instant motion.

         A. Convenience of the Parties and Witnesses

         In evaluating the convenience element, courts generally consider: (1) the plaintiff's choice of forum; (2) the situs of material events; (3) the relative ease of access to sources of proof; (4) the convenience of witnesses; and (5) the convenience of the parties. Schumacher v. Principal Life Ins. Co., 665 F.Supp.2d 970, 977 (N.D. Ind. 2009). “The movant . . . has the burden of establishing, by reference to particular circumstances, that the transferee forum is clearly more convenient.” Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir. 1986).

         1. Plaintiff's Choice of Forum and Situs of Material Events

         A plaintiff's choice of forum is entitled to substantial deference, especially when the chosen forum is the plaintiff's home forum. Am. Commercial Lines, LLC v. Ne. Maritime Inst., Inc.,588 F.Supp.2d 935, 945 (S.D. Ind. 2008). Yet, the plaintiff's choice of forum is not always the controlling factor for the court when the totality of the factors suggests a stronger nexus between the transferee court and relevant events. Research Automation, 626 F.3d at 979. ...


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